Federal judge orders removal of San Diego war cross

December 12, 2013

Because it sits on public property, critics have long argued that the cross at the Mount Soledad Veterans Memoria in La Jolla, Calif., is an unconstitutional entanglement of government and religion.

A judge on Thursday ordered that a war memorial cross atop a San Diego mountain be removed from federal property in 90 days but said the ruling would be put on hold if it is appealed.

U.S. District Judge Larry Burns wrote that “it’s time for finality” in the case, 22 years after another judge ordered the 43-foot cross atop Mount Soledad to be taken down.

The 9th U.S. Circuit Court of Appeals ruled in 2011 that the cross violated the constitutional separation of church and state. After the Supreme Court declined review, the case went back to Burns to consider possible alternatives.

Burns rejected arguments that Congress may eventually agree to transfer the land to a private party.

“If a transfer were underway or were imminent, or there was a strong prospect of a transfer, the question would be more difficult,” he wrote in a five-page ruling.

Burns said he believed the cross doesn’t represent a government attempt to promote religion but acknowledged that the appellate court ruled differently.

Attorneys for Defense Secretary Charles Hagel, who is named as a defendant, didn’t immediately respond to messages seeking comment on whether the government would appeal.

Charles LiMandri, an attorney for the Mount Soledad Memorial Association, said Supreme Court Justice Samuel Alito has signaled that the group backing the cross could return directly to the nation’s high court if it disapproved of Burns’ ruling.

“Unless the U.S. Supreme Court denies review or takes it and finds it unconstitutional, that cross isn’t going anywhere,” LiMandri said. “At that point, we’ll go to Congress. We’re not giving up.”

The American Civil Liberties Union represented the Jewish War Veterans of the United States of America and several local residents to challenge display of the cross.

“We support the government paying tribute to those who served bravely in our country’s armed forces,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief. “But we should honor all of our heroes under one flag, not just one particular religious symbol.”

The cross, which offers sweeping ocean views from San Diego’s La Jolla area, was used for Easter celebrations in the early 1900s and became a memorial to Korean War veterans in the 1950s.